Responsa for Bava Kamma 126:8
דכולי עלמא מיהת אם לא ימצא הגנב בטוען טענת גנב כתיב מאי משמע אמר רבא אם לא ימצא כמה שאמר אלא שהוא עצמו גנבו ישלם שנים
— As, however, it is further stated, If the thief be not found,<span class="x" onmousemove="('comment',' Ex. XXII, 7. ');"><sup>13</sup></span> we must conclude that the [whole] verse<span class="x" onmousemove="('comment',' Which should be construed thus: If it be not found as the bailee pleaded that it was stolen by a thief but that he himself was the thief etc. ');"><sup>14</sup></span>
Teshuvot Maharam
Q. (1) A made a contract with B and gave him a pledge as security that he would fulfill the contract and said, "If I do not carry out the terms of the contract the pledge shall be yours."
(2) C went surety for A to B promising to pay him a certain amount if A should break the terms of the contract.*That two questions were asked of R. Meir, one regarding security, and another regarding a surety, is seen from the fact that towards the end of this Responsum (in the Pr. 130 version which deals with a pledge) R. Meir uses the phrase וכ׳׳ש ערב לא משתעבד מק׳׳ו המשכון עצמו פטור כ׳׳ש הערב, which seems to indicate that the question was also about a surety. Furthermore, Responsum Cr. 34, gives exactly the same answer as Pr. 130, regarding a surety. Do such transactions fall under the rule of asmakta (אסמכתא)?
A. Both cases fall under the rule of asmakta and are, therefore, not binding.
SOURCES: Cr. 34, Pr. 130; L. 356; Asher, Responsa 108, 27.
(2) C went surety for A to B promising to pay him a certain amount if A should break the terms of the contract.*That two questions were asked of R. Meir, one regarding security, and another regarding a surety, is seen from the fact that towards the end of this Responsum (in the Pr. 130 version which deals with a pledge) R. Meir uses the phrase וכ׳׳ש ערב לא משתעבד מק׳׳ו המשכון עצמו פטור כ׳׳ש הערב, which seems to indicate that the question was also about a surety. Furthermore, Responsum Cr. 34, gives exactly the same answer as Pr. 130, regarding a surety. Do such transactions fall under the rule of asmakta (אסמכתא)?
A. Both cases fall under the rule of asmakta and are, therefore, not binding.
SOURCES: Cr. 34, Pr. 130; L. 356; Asher, Responsa 108, 27.
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